MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 182 Docket: And

- 16

- 146 Submitted

On	Briefs: July 19 ,	2017 Decided: August	22,	2017 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD ,	JABAR , and HJELM, JJ. Majority: SAUFLEY,	C.J.,	and MEAD and	HJELM,	JJ. Concurrence/

Dissent: ALEXANDER	and	JABAR,	JJ.

IN	RE	EVELYN	A.	et	al.

SAUFLEY,	C. J. [¶1] Evelyn	and	 Elijah A. are	 twins	 born	in	 2013. Because	 the twins’ parents	had	been	convicted,	in	2005,	of	th e	assault	and manslaughter of	their twenty
- one - month

- old	 son,	Nathaniel,	 the	 twins	went	 from	 the	 hospital	into foster	 care. They	 have	 remained	 with the	 same foster	 parents	 since	 their birth ,	and although	Evelyn has cerebral	palsy	 that	affects	her	ability	 to	walk, both children are otherwise healthy

. The	 parents	 have	 never	 accepted	 the jury’s	 verdict	 finding	 the	 mother	 guilty	 of	 manslaughter	 or	 the	 separate verdict	 finding	 the	 father	 guilty	 of	 assault. The y	 have testified that	 they believe that the	 scientific	 and	 medical	 communities have	 been	 wrong about the cause of	Nathaniel ’s	death and	the	system	of	justice	has failed	them

.2 [¶ 2 ] The matter	 comes	 before	 us	 in	 an	 unusual	 procedural	 posture. After a	 trial	 on a petition to	 terminate parental	 rights brought	 by	 the Department	 of	 Health	 and	 Human	 Services, the District	 C ourt	 (Lewiston, Dow, J. ) terminated both	 parents’ parental rights to	 the	 twins

. T he	 parents filed	notices	of	appeal	and moved	for	relief	from the	judgment	of	termination and months later	moved for	relief from the court’s initial finding	of	jeopardy ( Field,	 J. ) ,	 all	 based	 on	 claim s of	 ineffective	 assistance	 of	 counsel

. After	 a hearing, the court concluded	 that	 trial	 counsel	 had	 been	 ineffective at	 the jeopardy stage and	 declined	 to	 make	 findings	 regarding counsel’s effectiveness	in the	 termination	 proceeding

. Based	 on	 the	 finding	 regarding the	 jeopardy	 proceeding,	 the	 court vacated the	 termination	 order	 and required	the	Department	to negotiate	a	plan	to provide	reunification	services to	 the	parents. The	Department	appeals	 from	 the	court’s	judgment vacating the	termination	order. [¶ 3 ] W e	 conclude	 that	 the	 court	 erred in	 addressing the	 parents’ untimely	 raised	 allegations that	 they had	 received ineffective	 assistance	 of counsel	at	the	jeopardy	stage, in	ordering	further	reunification	efforts,	and	in declining	to	adjudicate	the claim	of ineffective	assistance	of	counsel	regarding the	 termination	 proceeding. Accordingly,	 w e vacate	 the court’s	 judgment3 granting	 the	 parents’	 motion	 for	 relief as	 it	 affects	 the	 original	 jeopardy determination

. We	also clarify	the	process f or	applying	what	the	Legislature has	 called	 a	 “rebuttable	 presumption,”	 22	 M.R.S.	 §	 4055(1

- A)	 (2016), 1 and remand to allow	 the	 court	 to determine	 whether	 to	 terminate	 the	 parents’ parental	rights	by apply ing section	4055(1

- A) in	a	manner that	is consistent with	due	process. On	remand,	the	court	must	also, as	necessary, issue findings and	 determinations	 regarding	 the	 parents’	 claim	 of	 ineffective	 assistance	 of counsel	at	the	termination	hearing.
I.		BACKGROUND [¶ 4 ]	 	 The	 following	 facts	 are	 drawn	 from	 the	 court’s	 findings, all	 of which	 are	 supported	 by	 competent	 evidence	 in	 the record,	 and	 from	 the lengthy	procedural	record. See In	re	Gabriel	W. ,	2017	ME	133, ¶	3,

--- A.3d

--- . Evelyn	and	Elijah are	twins	born premature ly in	October	2013. Six	days	after they	were	born,	the	Department	petitioned	for	a	preliminary	protection	order on	 the	 ground	 that	 the twins’ parents	 had	 been	 convicted	 of	 crimes perpetrated	against	 their	 first	child, Nathaniel, who	died due	 to	 the	mother’s abuse within	 the	 f irst	year	after	they	had	adopted	him.		Specifically, in	2005,

1 The	Legislature’s	recent	amendment	 to	22	M.R.S.	§	4055(1

- A)	does	not	affect	 the	analysis	of the	 law	 in	 this	 case. See P.L.	 2015,	 ch.	 360,	 §	 4	 (effective	 Oct.	 15,	 2015)	 (codified	 at	 22	 M.R.S. § 4055(1

- A)(B)(11)	(2016)).4 the	 mother had	 been convicted	 of	 manslaughter (Class	 A) ,	 17

- A	 M.R.S. § 203(1)(A)	 (2016), see	 State	 v.	 Allen ,	 2006	 ME	 20, ¶	 1, 892	 A.2d	 447 (affirming	 conviction), and	 the	 father	 had	 been	 convict ed	 of	 assault	 of	 a person	under	the	age	of six	(Class	C), 17

- A M.R.S.	§ 207 (1)(B)	(2016) , see	State v.	Allen ,	2006	ME	21, ¶	1, 892	A.2d	456 (affirming	conviction). 2 [¶ 5 ]		The	court	( Oram,	J. ) signed an	order	of	preliminary	protection	on October	 9,	 2013,	 placing	 the	 twins	in	 the	 cust ody	 of	 the	Department. When the	 children	 were	 discharged	 from	 the	 neon atal	 intensive	 care	 unit	 in mid

- November,	 they	were	placed	in	a	 foster	home,	where	 they	have	 resided
ever	since. [¶ 6 ]		The	parents	waived	 the	 right	 to	a	 summary	preliminary	hearing

. The	 court	 ( Beliveau,	 J. )	 held	 a five

- day	 contested	 jeopardy	 hearing	 on February	 25	 and	 26,	 March	 14,	 Ap ril	 30,	 and	 May	 9,	 2014

. 3 See 22 M.R.S. § 4035(1)	 (2016). The	parents	were	represented	by	counsel	 throughout	 the proceeding. At	 that hearing ,	 the court	heard	specific	evidence	regarding	 the convictions	related	to	Nathaniel’ s	death. Notwithstanding	the	convictions,	the

2 Because	 t he	statutes	p ursuant	 to	which	 the	parents	were	convicted	have	not	been	amended since	their	convictions,	we	cite	the	current	codification	of	those	statutes.

3 The	court	was	apparently	unable	to	hear	the	matter	in	a	single	week	and	had	to	schedule	this detailed	 hearing over four months	 because	 of	 the	 absence	 of	 block	 scheduling. That	 should	 not arise	as	a	problem	in	similar	cases	in	the	future.5 court	 allowed	 the	 parents	 to offer	 evidence	 to challenge	 the	 cause	 of Nathaniel’s	death.		The Department	presented	evidence	of	the	head	and	neck injuries suffered	by	Nathanie l	wh ile	he	was	in	his	mother’s	care; the	resu lting
inter

- cranial	 bleeding	 that	 was	 t he	 immediate	 cause	 of	 death; the medical opinion of	the	cause	of	death	that	had	been	presented	to	the	jury

— violent	and repeated	 shaking	 of	 the	 child;	 and the	 parents’	 frustration	 with	 Nathaniel’s behavior	that	precede d	his	injuries. The	parents	both	testified. They did	not accept	 responsibility	 for	 Nathaniel ’s death ,	 and	 they expressed	 their	 belief that	 his	 death	 was	 caused	 by	 some	 other undiagnosed medical	 problem , possibly due	to	his immunization s or	a	seizure	or	metabolic	disorder. [¶ 7 ]		The	court entered	an	order on	June	2,	2014, finding	the	children	to be	in	jeopardy

. See 22	M.R.S.	§	4035(2)	(2016). Although	the	Department	had not	 sought	 a	 finding	 of	 an	 aggravating	 factor,	 the	 court determined	 that	 an aggravating	factor	existed	as	to	each	parent because	of	the mother’s criminal

co nviction of	 manslaughter, see 22	 M.R.S.	 §	 4002(1

- B)(B) (3) (2016) ; the father’s felony	conviction	of	assault	on	a	child	under	the	age	of	six resulting	in
seri ous	bodily	injury , see 22 M.R.S. § 4002(1

- B)(B)(5)	(2016) ; and the	father’s subjection	of Nathaniel to “tr eatment	that	is	heinous	or	abhorrent	to	society,”6 22	M.R.S.	§ 4002(1

- B)(A) (2016) , 4 by	beating	the	child	with	a	wooden	spoon

. The	 court	 specifically found	 that	 the	mother	is	 “unable	 to	 show	 remorse	 for her	actions ”	and “ unable	to	take	responsibility	for	her	actions.” [¶ 8 ]		T he	court	found that,	since	her conviction, the	mother has	 not	 once	 admitted	 to	 any	 wrongdoing.	 	 She , along	 with	 [the father] , maintains	 that	 Nathaniel’s	 death	 was	 caused	 by	 an untreated	medical	condition.		She	does	admit	 that	her	actions	on that	night	could	have	made	Nathaniel’s	medical	condition	worse, thereby	leading	to	his	death,	but	she	still	feels	she	has	committed no	 wrong .	 	 In	 counseling	 she

.	 .	 . focused	 more	 on	 her	 anger towards	 the	legal	system	 than	her	grief	 for	 the	loss	of	Nathaniel. [ T he	mother] was	Nathaniel’s	caregiver	on	the	night	he	died,	and she	 has	 yet	 to	 provide	 a	 consistent	 and	 plausible	 story	 for Nathaniel’ s	death. [¶ 9 ] The	 court	 ordered	 the	 Department	 to	 cease	 reunification	 efforts with	 the	 parents	 based	 on	 these	 aggravating	 factors. See 22	 M.R.S. §§ 4036(1)(G

- 2) , 4041(2)(A

- 2)(1) (2016)

. The parents	 appealed from	 the jeopardy	order. See	In	re	E.A. , 2015	ME	37,	¶	6,	114	A.3d	207. W e	affirmed	the court’s	order	as	to	both	parents. See id. ¶	1. [¶1 0 ] The	 parents	 did	 not request any	 services	 to	 alleviate	 parenting deficits,	 and	 they	 continued	 to	 maintain	 that	 they	 presented	 no	 risk	 to	 the

4 Although 22	M.R.S. §	4002(1

- B)(A) was	recently	amended	to	include	additional	specific	crimes giving	rise	to	an	aggravating	factor,	the	language that	applies here	has	not	changed,	and	we	cite	the current	 statute. See P.L.	 2015,	 ch.	 360,	 §	 3	 (effective	 Oct.	 15,	 2015)	 (codifie d	 at	 22	 M.R.S. § 4002(1

- B)(A) (1) (2016)).7 twins. On	 July	 1,	 2014,	 the	 Department	 petitioned	 for	 termination	 of	 the parents’	 parental	 rights. More	 than	 a	 year	 later,	 t he	 court ( Dow,	 J. ) held	 a hearing	on	October	29 and	30 ,	2015,	and	entered	a	judgment	terminating	both parents’	 parental	 rights	 to	 the	 chil dren	 on	 February	 23,	 2016. The	 court considered	 the	 evidence	 that	 the	 parents	 offered	 to	 rebut	 the statutory presumption that	they	are	“unwilling	or	unable	to	protect	the	child[ren]	from jeopardy	and	these	circumstances	are	unlikely	to	change	within	a	tim e	which is	 reasonably	 calculated	 to	meet	 the	 child[ren] ’ s	 needs”

— a	 presumption the court	 found	 arose from	 the mother’s conviction	 and	 the	 father’s	 conduct toward	their	 first	child that was	“heinous	or	abhorrent	to	society.” 22	M.R.S. § 4055(1

- A)(A),	(B)(3 )

. 5 T he	court	 found that	 the	parents	 “ha[d]	 the	burden to	rebut	the	presumption	of	parental	unfitness”	and	that	they	“fail[ed]	to	meet that	 burden.” The	 court	 found , by	 clear	 and	 convincing	 evidence ,	 that	 the parents	were	 unwilling	 or	 unable	 to	 protect	 t he	 children	 from	jeopardy	and that those	 circumstances	 were	 unlikely	 to	 change	 within	 a	 time	 reasonably calculated	to	meet	the	children’s	needs, and it determined	that	the	children’s

5 Unlike	the	jeopardy	statute,	t he	termination	statute	does	not include	felony	assault	resulting	in serious	 bodily	 injury	 as	 a	 fact that	 gives rise	 to	 the	 “presumption.” Compare 22	 M.R.S. §§ 4002(1

- B)(B)(5),	4036(1)(G

- 2) (2016) , with 22	M.R.S.	§	4055(1

- A)(B)	(2016).8 best	interests	would	be	served	by	termination	of	the	parents’	parental	ri ghts.
See 2 2	M.R.S.	§ 4055(1)(B)(2)(a),	(b)(i)	(2016). [¶1 1 ] The	parents timely appealed	from	the	judgment ,	and each moved for	an	enlargement	of	time	to	file	a motion	for	relief	from	judgment. S ee M.R. Civ.	P.	60(b). The	court	granted	the	parents’ motion s for	enlargement	of	time, ultimately allowing	 the	 parents	 until	 June 16,	 2016 , almost	 four	 months following	 the	 entry	 of	 the	 termination	 order, to	 file	 any	 Rule	 60(b)	motions specifically	 related	 to	 allegations	 of	 ineffective	 assistance	 of	 counsel

. W ith respect	to	the	parents’	pending	appeal,	we directed the	Clerk	of	the	Law	Court

“ to	withdraw	the	briefing	schedule	if,	and	only	if,	either	parent	files	a	motion in	the	District	Court	pursuant	to	M.R. Civ.	P.	60(b)	on	or	before	June 16,	2016.” [¶1 2 ] On	June	15,	2016,	the	parents	filed	a	joint	motion	for	relief	from the judgment terminating	 their	 parental	 rights.	 	 They	 alleged	 that	 they received ineffective	assistance	of	counsel	at	the	termination	hearing , and they attached	affidavits	in	support	of	t heir	motion

. For	reasons that	are not	clear on	 the	 record ,	 no	immediate	 hearing was	 held	 on	 the	motion	 for	 relief	 from judgment

. Five	months	later,	 on	November	 10,	 2016,	 the	 parents	moved	 to amend	their	motion	to	add	allegations	of	ineffective	assistance a t the	jeopardy stage. About	 one	 mo nth	 later, the	 court held	 a	 hearing	 on	 the Rule 60(b)9 motions. On February	 17,	 2017,	 the	 court entered	 a	 judgment granting	 the motion	 to	amend the	motion	 for	relief	 from	judgment and finding	ineffective
assistance at	 the	 jeopardy stage by	 both	 parents’	 counsel primarily due	 to what	 it	 concluded	 was	 insufficient	 advice	 regarding	 the	 parent s ’ decision whether to	 consent	 to	 a	 finding	 of	 jeopardy to	 reduce their exposure	 to a potential finding	of	an	aggravating	factor and	a	cease	reunification	order

. See
22 M.R.S.	 § § 4002(1

- B) (A) ,	 (B)(3), (5), 4036(1)(G

- 2), 4041(2)(A

- 2)(1)

. The court	found	that counsel’s inaccurate	advice	affected	the	parents’	decisions	to reject	an	agreement	offered	by	the	Department	that,	if	accepted	by	the	court, would	not	have	included	an	aggravating	factor. Although	the	parents	had	not sought	any	specific	services other	than	increas ed	visitation ,	t he	court	ordered the	Department	 to	 offer	 the	 same	agreement	 to	 the	 parties	and	 to	 negotiate with	 the	 parents	 and	 the	 guardian	 ad	 litem,	 in	 good	 faith, to	 create “a reunification	plan	likely	to	serve	the	children’s	best	interest.” [¶1 3 ] The	Department	filed	a	notice	of	appeal	from	the	court’s	decision and	moved	for	reconsideration	and	for	findings	of	fact. The	court	granted	the
moti on	 for	 findings	of	 fact	in	part ,	clarifying	 that	 the	jeopardy	order	was	not vacated:	“Jeopardy	has	not	been alleviated.		The	jeopardy	order	was	properly entered	 on	 the	 trial	 evidence,	 appealed	 to	 and	 affirmed	 by	 the	 Law	 Court.”10 Nonethele ss,	the	court	also	found	that	“[t] he	result	of	the remedy	ordered	by the	C ourt	in	the	February	17	judgment	would	likely	be	an amended	jeopardy order.” The	jeopardy	order	was	 therefore	 to	 remain	in	effect	until	 replaced, but	the	termination judgment was	vacated	to	allow	for	additional	proceedings. We	now	consider	the	appeals	brought	by	the	parents	and	the	Department.
II.		DISCU SSION
A. Final	Judgment	Rule [¶1 4 ] Preliminarily,	we	 note	 that the	matter	 before	 us	 does	 not,	 as	it stands, finally	dispose	of	 the	case .		Although	we	would	ordinarily	dismiss	an appeal	 from an	interlocutory	decision ,	we	apply	 the	death	knell	exception	 to the	final	judgment	rule in	this	matter

. See In	re	Bailey	M. ,	2002	ME	12,	¶	7,	788 A.2d	 590.	 	 “That	 exception	 allows	 a	 party	 to	 appeal	 an	 interlocutory	 order immediately	if	substantial	rights	of	that	party	will	be	irreparably	lost	if	review is	 delayed	 unt il	 final	 judgment.” Id. (alteration	 omitted) (quotation	 marks omitted). Here,	 because	 of	 the	 statutorily	 mandated priority	 given	 to establishing permanency	in child	protection proceedings, 22 M.R.S.	§	4003(4) (2016) , the	previous	delay	in	reaching	the claim	of in effectiveness	of	counsel, and	 the	 number	 of	 years	 that	 these	 children	 have	 been	in	 foster	 care

— fully three	and	a	half	years	now

— the	resolution	of	the	issues	in	this	appeal	must	be11 given	 priority to	 prevent	 extensive	 further	 proceedings	 that	 woul d	 have	 an

“ immi nent,	concrete,	and	irreparable ” effect	on	the	lives	of	the	children. I n	re Bailey	M. ,	2002	ME	12,	¶	7,	788	A.2d	590 (quotation	marks	omitted).
B. Timeliness	of	Motion	to	Amend	Motion	for	Relief	from	Judgment [¶15]		The Department	 first	argues	that	the	court	abused	its	discretion in	 granting	 the	 parents’	 motion	 to	 amend	 their	 motion	 for	 relief	 from the judgment terminating	their	parental	rights because	the	motion	to	amend	was filed five	 months after	 the	 deadline	 establis hed	 by	 the trial court	 and	 by	 us , and	 the	parents	did	not seek	leave	 from	us to	amend	 their	motion

. See M.R. App.	P.	3(b). We	have	been	very clear in	describing	the limited timeframe	for raising	 an	 ineffective	 assistance	 claim	 after the	 entry	 of a	 judgme nt terminating	a	parent’s	parental	 rights:	 “The	motion	 for	 relief	 from	judgment should	 be	 filed	 no	 later	 than	 twenty

- one	 days	 after	 the	 expiration	 of	 the period	for	appealing	the	underlying	judgment.” In	re	M.P. ,	2015	ME	138,	¶	20, 126	 A.3d	 718

. The	 termination judgment ,	 dated	 February	 22,	 2016,	 was entered	 on	 the	 docket	 the	 following	 day,	 February	 23,	 2016. T hus,	 the deadline	for	filing	a	motion	was	April	5,	2016

— t wenty
- one	days	following	the expiration	of	the twenty
- one - day appeal	period

. S ee M.R.	App.	P.	2(b)(3)

.12 [¶1 6 ] Despite	 the	 urgency	 of	 the	 timeframes, the	 court	 granted	 a motion	to	enlarge	the	time	for	filing	a	motion for	relief and	enlarged	the	time to	 file	motions	 to	 June	 16,	 2016

— a lmost	 four months	 after	 the	 entry	 of	 the
termination judgment

. By	 order	 dated June	 3,	 2016,	 we	 directed	 that	 the briefing	schedule	for	the	parents’	pending	appeal	would	be	withdrawn	“if,	and only	 if,	 either	 parent	 file [d] a	 motion	 in	 the	 District	 Court	 pursuant	 to	 M.R.
Civ. P. 60(b)	 on	 or	 before	 June 16,	 20 16.” The	 parents	 filed	 their	 motion alleging	 ineffective	 assistance of	 counsel	 at the	 termination	 hearing	 on June 15,	2016. [¶1 7 ] Again,	 f or	 reasons	 that	 do	 not	appear	in	 the	 record ,	 no	 hearing was	 immediately	 held	 on	 the parents’	 initial Rule	 60(b) motion.	 	 When	 no hearing	 had	 been	 held	 five	months	later,	 the parents	moved	 to	 amend	 their motion	on	November	10,	2016 , to	include	additional	allegations	of	ineffective
assistance during	the	jeopardy sta g e	of	the proceeding	in	the	spring	of	2014

. Although these	 additional	 grounds	 were	 presented	 far	 beyond	 the already

- extended deadline,	 the	 court	 granted	 the	 motion	 to	 amend	 and entered	 its	 judgment on	 February 17,	 2017 , based	 on	 the	 grounds	 raised	 in that amended	motion

.13 [¶1 8 ] In a	 child	 protection	 proceeding,	 allowing	 amendments	 to motions	 for	 relief	 months	 after	 the	 established	 deadline should	 not be permitted except	 in	 the	 most	 extraordinary	 of	 circumstances

. The State’s interest	 in	 finding	 permanency for	 the	 child within	 a	 re asonable	 time, see 22 M.R.S.	 § 4003(4), makes	 child	 protection	 proceedings	 unique

. See,	 e.g. , 22 M.R.S.	§ 4052(2

- A) (2016) (providing	deadlines	 for the	Department	to	 file
termination petitions). Here,	 a llowing an amendment	 of	 t he	 motion	 five

m onths	 after an	 already

- extended deadline	 for	 filing	 a	 Rule	 60(b)	 motion undermine d the	 statutory	 goal	 of	 permanency

. S ee 22	 M.R.S.	 § 4003(4) .	 	 It also negatively	 affected the	 particular	 needs	 of	 the	 children	 in	 this	 matter, who	had , by the	time	the	parents	filed	the	motion	to	amend ,	spent	three	years in	 foster	 care

— nearly nine months of which	 were after the entry	 of	 the judgment terminating	the	parents’	parental	rights

. [¶1 9 ] Although we	 recognize	 the	 trial	 court’s	 goal	 of	 protecting	 the parents’	 fundamental	right	 to	effective	assistance	of	counsel,	s ee	generally	 In
re	M.P. ,	2015	ME	138,	126	A.3d	718,		the	court	must	be	careful,	in	protecting that	 right,	 not	 to	ignore	 the simultaneous interest	 of	 the State	in	 promoting “the	 early	 establishment	 of	 permanent	 plans”	 for	 the	 children , 22	 M.R.S. § 4003(4). Thus,	 a ssuming,	 without	 deciding,	 that	 a	 challenge	 to the14 effectiveness	 of	 counsel	 at	 a	jeopardy	 proceeding	may	 b e	 considered	 by	 the
tri al	court,	here	 t hat	challenge	came	 far	 too	late. To	be	clear,	w e	have	never allowed,	 nor	 prohibited, a	 parent ’s	 filing	 of a	 motion	 immediately	 after	 the entry	 of	 a	 jeopardy	 order	 to challenge	 the	 effectiveness	 of	 c ounsel	 at the jeopardy	 proceeding.	 	 Here , we	 address	 only	 the	 propriety	 of the	 parents ’ challenge to the	jeopardy	order through	a	motion	that	they	filed long	after the jeopardy	 order was	 entered	 and months after the	 entry	 of	 a	 termination order. Because	we	conclude	 that	 the	court	abused	its	dis cretion	in	allowing th e	late	motion	to	amend	the	Rule 60(b)	motion,	we	need	not ,	in	 this	area	of evolving	jurisprudence, determine	whether or	how a	parent	may	challenge	a jeopardy	order	based	on a	claim	of ineffective	assistance	of	counsel. [¶ 20 ] In addition,	because	the	court	will ,	on	remand, consider a claim	of
in effectiveness	of	counsel at	the termination stage ,	we	also	address	the	court’s reasoning regarding	 the	 substance	 of	 the	 alleged	 ineffectiveness	 at	 the jeopardy stage .	 	 In	 essence,	 the	 cour t	 determined	 that	 counsel	 should	 have provided better information	 to	 the	parents about	 the	option	of	agreeing	 to a jeopardy	finding	without	a	trial	and	without	a	finding	of	an	aggravating	factor, thereby obtaining	 a	 tactical	 advantage	 as	 the	 case	 progressed if	 the	 court accepted	 the	 agreement	 and	 entered	 an	 order	 without	 the	 finding	 of	 an15 aggravating	 factor

. 6 The	 futility	of	any	such advice from	counsel in	 this	case must	now	be	clear.		The se parents	have never agreed	that	they	presented	any jeopardy	 to	 their	 twins,	 nor	 have	 they argued	 that	 they	 needed	 more	 time, more	services,	more	counseling,	or	additional parenting	training. [¶ 2 1]	 	 Indeed,	 the	 parents have	 not	argued	 that that any reunification
services ,	other	than	increased	visitation, were	needed	or	would	have	made	a difference. Their	position	is	quite	clear from	the	trial	testimony	they	offered

. They	believe	that	the	mother’s	actions	did	not	cause	Nathaniel’s	death. They

test ified	 to	 their	 belief that	 they	 are	 emotionally,	 financially, and psychologically ready	 to	 be	 loving	 parents	 to	 their	 twins. 7 Their families believe	 the	same	and	stand	ready	 to	assist	 them	in	parenting. In	 the	 face	of this	belief,	the	court’s	determination	that	the	parents should	now	be	provided with reunification	services ,	or that the	aggravating	 factor s of	 the	convictions and	conduct	“heinous	or	abhorrent	 to	society” should be	ignored, appears	 to provid e	 a	 hollow	 remedy

. 22	 M.R.S.	 § § 4002(1

- B)(A),	 (B)(3),	 (5), 4036(1)(G

- 2) ,	 4041(2)(A

- 2)(1),	 4055(1

- A)(A),	 (B)(3)

. The	 fact	 of	 their

6 There	is	no	assertion	that	the	parents’	right	to	effective assistance	of counsel	was	in any	way limited	during	the	five

- day , intensely	contested	jeopardy	trial.

7 They	also	believed	 that	 they	were	prepared to	be	loving	parents	 to	Nathaniel,	having	agreed that	 corporal	 punishment	would	 not	 be	 employed.	 	Despite	 th at	agreement ,	 they	admit	 that	 they treated Nathaniel roughly when	his	behavior	(at	just	short	of	two	years	old)	frustrated	them.16 convictions	remains	a	matter	of	record. See Allen ,	2006	ME	21,	892	A.2d	456 (father); Allen ,	 2006	 ME	 20,	 892	 A.2d	 447 (mother). No	 court , at	 the termination	stage regarding	the	twins , would	have	overlooked	the	conviction s or	 the conduct	 of	 the	 parents	 toward	 Nathaniel

. See 22 M.R.S. § 4055(1)(B)(2)(b),	(1

- A)(A),	(B)(3). Because	the	parents	do	not	suggest	that they	 would	 have	 benefited	 from	 any	 reunification	 service s other	 than increased	 visits , and	 they	 do	 not	 dispute	 that	 the	 convictions	 stand, they would	have been in essentially the	same	position	at	 the	 termination	he aring had	 there	 been	 no	 cease	 reunification	 order or	 aggravating	 factor determination

. [¶ 22 ]	 	 In	 sum,	 g iven	 the	 intensely	 time

- sensitive	 nature	 of	 child protection	 proceedings,	 we	 conclude	 that	 t he	 court	 abused	 its	 discretion in granting	 the	motion	 to	 a mend	 the	motion for	 relief to	include	 allegations	 of ineffective	 assistance	 at	 the	jeopardy	 stage. Moreover,	 given	 the	 absence	 of any	 meaningful	 remedy	 for	 the	 parents, who	 at	 most	 were	 deprived	 of	 a possible	 tactical	 advantage, there	 is	 no	 injustice	 in	 this	 determination. Accordingly,	 we	 vacate	 the	 court’s	 order	 granting the motion to	 amend and ruling	on	the	merits	of	the	jeopardy

- related	ineffective	assistance	claims

.17 [¶ 23 ]	 	 W e	 now	 address	 the	 parents’	 contentions	 with	 respe ct	 to the termination	 order	 and	 the allegations	 of	 ineffective	 assistance	 of	 counsel	 at the	termination	proceeding

. C

. Termination	of	Parental	Rights [¶ 24 ]		 In	appealing from the	 termination judgment ,	 t he	parents	do	not directly challenge	the	sufficiency	of	the	evidence	to	support	the	findings	of	the court	or	the	court’s	exercise	of	discretion	in	determining that	termination	is	in the	 children’s	 best	 interests.	 	 Rather,	 they	 contend	 that	 the statutory presumption	applicable	at	 the termination	 stage	when	an	aggravating	 factor has	 been	 found	 unconstitutionally	 shifts	 the	 burden	 of	 proof	 in	 violation	 of due	 process	 because	 the	 Department	 need	 no	 longer	 establish	 unfitness	 by clear	 and	 convincing	 evidence

— the	 constitutionally required standard of proof

. 8

[¶ 25 ]	 	 We	 review	 de	 novo	 whether	 a	 statute	 is	 unconstitutional	 as applied. Ford	Motor	Co.	v.	Darling ’ s ,	2014	ME	7,	¶	33,	86	A.3d	35.		Statutes	are presumptively	 valid,	 with	 reasonable	 doubts	 resolved	 in	 favor	 of

8 Although neith er	 parent challenge d the	 court’s interpretation	 or	 application of	 the	 statute through	 a	 post

- judgment	 motion,	 we	 consider	 the	 issue	 to	 have	 been	 preserved because the mother’s	counsel,	in	closing	argument , contended	that	the	statute,	which	contains	only	pe rmissive language,	does	not shift	the	burden	of	proof

. See Homeward	Residential,	Inc.	v.	Gregor ,	2017	ME	128, ¶	9,

--- A.3d

--- (“ To	preserve	an	issue	 for	appeal,	 the	party	seeking	review	must	 first	present	 the issue	to	the	trial	court	in	a	timely fashion. ”).18 constitutionality. Id. If	a statute	is ambiguous ,	meaning	that	it	is susceptible to	more	than	one	interpretation ,	we	will adopt	an	interpretation that render s the	statute constitutional,	provided	that	such	an	interpretation	exists. I d. [¶ 26 ] The	 constitutional	 issue	 befo re	 us	 concerns	 the statutorily created effect	 of	 the	court’s	 finding	 of	an	 “aggravating	 factor

. ” See 22	M.R.S. § 4002(1

- B)	(2016). That	term	is defined	to	include	circumstance s in	which	a parent	was	convicted	of	manslaughter	or	a	“[f]elony assault	that	result[ed]	in serious	bodily	injury”	and	 “the	victim	of	 the	crime	was	a	child	 for	whom	 the parent	was	responsible ,” id. § 4002(1

- B) (B)(3) ,	(5) ,	and	also	the	circumstance in	 which	 “[t]he	 parent	 has	 subjected	 any	 child	 for	 whom	 the	 parent	 was

r esponsible	 to	 aggravated	 circumstances,	 including	 .	 .	 .	 treatment	 that	 is heinous	or	abhorrent	to	society,” id. §	4002(1

- B)(A). [¶ 27 ] By	statute,	a	finding	of	an	aggravating	factor	can	have	two	effects. First,	 “[i] f the	 court’s	 jeopardy	 order	 includes	 a	 finding	 of	 an	 aggravating factor,	 the	 court	 may	 order	 the	 department	 to	 cease	 reunification,	 in	 which case	 a	 permanency	 planning	 hearing	must	 commence	 within	 30	 days	 of	 the order	to	cease	reunification.” Id. § 4036(1 )(G

- 2)

. [¶ 28 ]		Second,	at	 the	 termination stage ,	“[t]he	court	may	presume	 that the	parent	is	unwilling	or	unable	to	protect	the	child	from	jeopardy	and	these19 circumstances	 are	 unlikely	 to	 change	 within	 a	 time	 which	 is	 reasonably calculated	to	meet	the	chi ld’s	needs	if	.	.	. the	parent	has	been	convicted	of	.	.	. [m]anslaughter”	 and	 “ [t]he	 victim

.	 .	 . was	 a	 child	 for	 whom	 the	 parent	 was responsible .” Id. § 4055( 1

- A)(B)(3)

. The	 presumption	 also	 arises	 if	 “[t]he parent	has	acted	 toward	a	child	in	a	manner	 that	is	heinous	or	abhorrent	 to society	or	has	failed	to	protect	a	child	in	a	manner	that	is	heinous	or	abhorrent to	society,	without	regard	to	the	intent	of	the	parent.” Id. §	4055(1

- A)(A). [¶ 29 ]		Although	th e	parents	contend	that	the	presumption	contained	in section	 4055	 impermissibly	 shifts	 the	 burden	 of	 proof, r ead	 in	 statutory context,	this	presumption differs	from	an	ordinary	presumption	in	a	civil	case. “In	 a	 civil	 case,	 unless	 a	 statute	 or	 these	 rules provide	 otherwise,	 the	 party against	whom	 a	 presumption	is	 directed	 has	 the	 burden	 of	 proving	 that	 the nonexistence	of	the	presumed	fact	is	more	probable	than	its	existence.” M.R. Evid.	301(a). [¶ 30 ] Here,	however, we	do	not	interpret th e	statute	to	shift	the	burden of proof

. See In	re	A.M. ,	2012	ME	118,	¶ 16,	55	A.3d	463; cf. Guardianship	of Chamberlain ,	2015	ME	76,	¶ ¶	17

- 34 ,	118	A.3d	229	(requiring	that,	to	balance the	 fundamental	 rights	 at	 stake,	 a	 petitioner	 in	 a	 guardianship proceeding bears	the	burden	of	proving unfitness	by	clear	and	convincing	evidence)

.20 [¶ 3 1]		Instead, 22	M.R.S.	§ 4055(1

- A) is	more	akin	to	a “ presumption ” in a	criminal	case. See M.R.	Evid.	303 (b) (“The	court	may	permit	a	jury	to	infer guilt	 or	 a	 fact	 relevant	 to	 guilt	 based	 on	 a	 statutory	 or	 common	 law presumption	or	prima	facie	evidence,	if	the	evidence	as	a	whole	supports	guilt beyond	a	reasonable	doubt. ”). Interpreting	the	statute	in	this	way, t he finding of	an	aggravating	factor	allows	a	court	to	infer	that	the	parent	is	unwilling	or unable	 to	 protect	 the	 child	 from	 jeopardy	 and	 that	 the	 circumstances	 are unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 child’s needs

. 22	M.R .S.	§ 4055(1)(B)(2)(b)(i),	(1

- A)(A),	(B) .		However, a	court	may reach an	 ultimate	 finding	 of	 unfitness only if the	 evidence	 in	 its	 entirety supports that	 finding by	 clear	 and	 convincing	 evidence

. S ee 22 M.R.S. § 4055 (1)(B)(2)(b), (1

- A)(A) ,	 (B) (2016) ;	 M.R.	 Evid.	 303. In	 essence,	 the
statute delineates	 the specific facts	 and circumstances up on	 which	 a	 court
may — but	need	not

— reach	an	 ultimate	 finding	 of	 parental	 unfitness. See	id. As	 the	 mother’s	 counsel	 argued	 at	 the	 termination	 hearing,	 “Because	 it ’s	 a may,	not	a	shall,	not	a	will,	there’s	no	burden	shift	.	.	.	.” [¶ 32 ] Reviewing	the	court’s	application	of	the	statute,	it	is	clear	that	the

court fully	 considered	 the	 evidence presented	 by	 the	 Department	 and t he parents

. The	court ultimately reasoned,	however, that	the	parents	had	failed21
to	meet “the burden	 to	rebut	 the	presumption	of	parental	unfitness.” As we clarify in our	 holding	 today, there	 is	 no	 burden	 on	 th e	 parent	 to	 rebut the

“ presumption ” ;	 the	 burden	 remains	 always	 on	 the Departmen t ,	 and	 the parents	 have	 neither	 a	 burden	 of	 production	 nor	 a	 burden	 of persuasion	 or proof	 regarding	 the “ presumption ” addressed	 in	 section	 4055 (1

- A) .	 	 The termination	order	must	therefore	remain	vacated,	and	we	remand	the	matter for the	trial	court	to	apply	the	statute	as	we	have	construed	it and	determine whether	 the	Department	met	its	burden	of	proof	on its petition	 to	 terminate the	parents’	rights	to	the	twins. [¶ 33 ] Thus,	 to	 be	 clear ,	 we	 affirm	 the	 court’s	 decision	 vacating	 its termination	order,	although	we	do	so	on	other	grounds.		On	remand , the	court

must decide	 whether to	 infer	 from	 the parents’ convictions and	 all	 other evidence	presented	at	the	termination	hearing	that the	parents	are	unwilling or	 unable	 to	 protect	 the children	 from	 jeopardy	 and	 that	 the	 circumstances are	 unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the child ren ’s	 needs

. S ee 22 M.R.S.	 § 4055(1)(B)(2)(b)(i),	 (1

- A)(A),	 (B) (3)

. Whether	or	not the	court	make s an	inference,	it	must determi ne	whether	the evidence	in	its	entirety	supports	a	finding	of	unfitness	b y	clear	and	convincing evidence. S ee 22	M.R.S.	§	4055(1)(B)(2)(b); see	also M.R.	Evid.	303.22 D

. Ineffective	Assistance	of	Counsel	at	 the	Termination	of	Parental	Rights Hearing [¶ 34 ] The	 only	 question	 remaining is whether the parent s ’	 legal representation at	the	termination	hearing was	constitutionally	insufficient

. At the	 termination	 hearing,	 t he	 parents’	 position,	as	 noted	 previously, was that the	court	should look	ag ain	at	 the facts	surrounding	Nathaniel’s injuries	and conclude	 that a	 medical	 cause	 other	 tha n those	 attributable	 to	 the	 mother resulted	in the ir toddler ’s	death

. Whether,	in	the	face	of	undisturbed	criminal
conviction s for	the assault	and manslaughter	of	Nathaniel, counsel	could	have effectively	presented	a	challenge	to	the	Department’s	position	both	legally	and factually	must	be	determined	by	the	trial	court. See	In	re	M.P. ,	2015	ME	138, ¶ ¶	26

- 27,	126	A.3d	718. The	District	Court	did	not	reach or	make	findings	on this	issue , and depending	on	the	court’s	decision	on	termination, it must do	so expeditiously on	remand	based	on	the	record	that	has	already	been	created. The	entry	is: The	 order	 granting	 the	 motion	 to	 amend relating	 to	 the	 jeopardy	 proceeding and grantin g	 in	 part	 the	 motion	 for	 relief	 from judgment	 is	 vacated .	 	 The	 order	 vacating the termination	 of	 each	 parent’s parental	 rights is affirmed	 on	 other	 grounds .	 	 The	 matter	 is remanded	 for	 the	 court ’s	 prompt decision	 on the	Department’s	petition	for	terminatio n	of	the parents’	parental	rights.		If	the	court	terminates23 parental	 rights,	 it	 must also rule	 on	 the Rule 60(b)	motion	 pertaining	 to	 the effectiveness	 of counsel	at	the	termination	stage

.

ALEXANDER,	J.,	with	whom,	JABAR,	J. , joins , concurring	in part	and	dissenting in	part

. [¶35]		I	concur	in	the	Court’s	opinion	addressing	the	jeopardy	order;	its analysis	 of	 the	 law	 regarding	 the	 statutory	 “presumption”	 arising	 from	 an aggravating	factor,	22	M.R.S.	§ 4055(1

- A)(A), (B)(3)	(2016);	and	its	analysis of the	evidence	in	this	case,	where	the	facts	regarding	the	parents’	prior	history of	dangerousness	 to	children	and	 their	current	concerning	views	about	 their capacity	to	parent	children	are	not	particularly	close. [¶36]	 	 I	 respectfully	 dissent	 only	 from	 t he	 Court’s	 remand	 to	 the	 trial court	 for	 further	 findings	regarding	application	of	 the	statutory	presumption and	effectiveness	of	trial	counsel.		As	the	Court	observes,	addressing	parents’ due	process	rights,	“the	 [trial]	court	must	be	careful,	in	protecti ng	 that	right, not	 to	 ignore	 the	 simultaneous interest	 of	 the State	 in	 promoting ‘ the	 early establishment	 of	 permanent	 plans ’ for	 the	 children. ” Court’s	 Opinion ¶ 19 ( quoting 22	M.R.S.	 §	4003(4)	 (2016)).		Delaying	 finality	and	permanency	 for these	children	pending	further	findings	on	remand	is	neither	necessary	nor	in the	best	interests	of	the	children.24 [¶37]	 	 Without	 requiring	 further	 findings,	 I	 would	 simply	 vacate	 and

reman d	 with	 direction	 to	 reinstate	 the	 termination	 of	 parental	 rights judgment	 and	 move	 on	 to	 the	 question	 of	 permanent	 placement,	 without further	delay. [¶38]	 	 We have	 not	 developed	 a	 significant	 body	 of	 precedent addressing	application	of	the	statutory	presumption	in	cases	where	a	parent, opposing	 termination	of	parental	rights,	has	previously	been	convicted,	after trial,	 of	 causing	 a	 child’s	 death	 or	 serious	 bodi ly	 injury.	 	 Nor	 have	 we frequently	 addressed issues	 of ineffective	 assistance	 of	 counsel	 in cases	 of

term ination	of	parental	rights

. A. Statutory	Presumption	or	Constitutionally	Required	Inference [¶39]		A	trial	court	ruling,	even	if	in	error,	will	not	resul t	in	vacating	the judgment	 if	 the	 error	 was	 “harmless”

— that	 is,	 if	 the	 error	 did	 not	 result	 in substantial	 injustice	 or	 affect	 substantial	 rights. See M.R.	 Civ.	 P.	 61; M.R.U.
Crim. P

. 52(a); see	also M.R.	Evid.	103(a). [¶40] A	 properly	 preserved	 error	 t hat	 is	 not	 of	 constitutional dimension	is	harmless	“if	it	is	highly	probable	that	the	error	did	not	affect	the judgment.” State	 v. Guyette ,	 2012	 ME	 9,	 ¶	 19,	 36	 A.3d	 916; s ee	 also
In re Scott S., 2001	ME	114, ¶¶ 24

- 25,	775	A.2d	1144; Williams	v. United States ,25 503	U.S.	 193,	 203	 (1992).	 	 In	 criminal	 cases,	with	 constitutional	 protections equal	to	or	greater	than	those	applicable	to	the	termination	of	parental	rights case	 at	 issue	 here,	 the	 State	 has	 the	 burden	 of	 persuasion	 on	 appeal	 to demonstrate that	an	error	was	harmless. State	v.	Dolloff ,	2012 ME 130,	¶	34, 58	A.3d	1032; see	also	United	States	v.	Olano ,	507	U.S.	725,	734	 (1993). The essential	question	is	whether it	is	highly	probable	that	any	error	did	not	affect the	trial	court	or	jury	decis ion. State	v.	Mangos ,	2008 ME 150,	¶	15,	957	A.2d
89

. [¶41]	 	 The	 Court	 correctly	 notes	 that	 the	 presump tive error	 at	 issue here	 affected	 the	 parents’	 constitutional	 rights.	 	 An	 error	 in	 a	 criminal	 case that	 affects	 constitutional	 rights	 can	 be	 subject	 to harmless	 error	 analysis. Washington	v.	Recuenco, 548	U.S.	212,	218	(2006).		In Recuenco, the	Supreme Court	 held	 that	 if	 a	 defendant	 had	 counsel	 and	 was	 tried	 by	 an	 impartial adjudicator,	 “there	 is	 a	 strong	 presumption	 that	 any	 other	 [constitutional]

erro rs	 that	 may	 have	 occurred	 are	 subject	 to	 harmless

- error	 analysis.” Id. ;

see also	Neder	v.	United	States, 527	U.S.	1,	8	 (1999)	 (applying	harmless	error analysis	 when	 a	 jury	 was	 not	 instructed	 on	 one	 essential	 but	 undisputed element	of	a	crime).26 [¶42]	 	 The appropriate	 harmless	 error	 inquiry	 on	 an	 issue	 of constitutional	rights in	a	termination	of	parental	rights	case is	whether,	upon review	of	the	whole	record, we	are	satisfied	that	“it	is	highly	probably	that	the error	did	not	prejudice	the	parents	or contribute	to	the	result	in	the	case.		The State’s	burden	of	persuasion	is	high.		Any	doubt	will	be	resolved	in	favor	of	the parent.” In	re	Scott	S. ,	2001	ME	114, ¶ 29,	775	A.2d	1144. Here,	it	is	apparent, without	 any	 doubt,	 that	 the	 trial	 court’s	 er rone ous	 application	 of	 a	 burden

shifting	 presumption	 analysis,	 rather	 than	 the	 constitutionally	 required inference	 analysis ,	 to	 find	 aggravating	 factors	 based	 on the	 parents’	 prior convictions	 for	 causing	 death	 or	 serious	 bodily	 injury	 to	 a	 child	 did	 not

contr ibute	to	the	final decision	terminating parental rights.		The	parents’	prior convictions	and	their	continued	claims	of	lack	of	responsibility	for	the	death	of their	 first	 child	 compelled	 the	 result	 reached	 by	 the	 trial	 court,	 even	 if	 the inference	 analy sis,	 leaving	 the	 burden	 of	 persuasion	 on	 the	 State,	 had	 been properly	applied.
B. Effective	Assistance	of	Counsel [¶43]	 	 The standard	 for	 post

- conviction	 review	 of	 claims	 of	 ineffective assistance	of	trial	counsel

— the	most	common	post

- conviction	review	issue

— has	been	stated	in Strickland	v.	Washington ,	466	U.S.	668,	687

- 90	(1984).27 [¶44] In Theriault	 v.	 State ,	 2015	 ME	 137,	 ¶ 13,	 125	 A.3d	 1163,	 we recognized	that	“ Strickland is	the	‘seminal	case’	that	establishes	the	standards controlling	 the	 disposition	 of	 claims	 of	 ineffective	 assistance	 of	 counsel.” ( quoting Manley	 v.	 State ,	 2015	 ME	 117,	 ¶	 12,	 123	 A.3d	 219).	 	 Referencing
Man ley ,	 we	 noted	 that	 “we	 reaffirmed	 that	 [ Strickland ]	 dispositively establishes	 the	 criteria	 in	 ineffectiveness	 claims,	 including	 the	 nature	 of prejudice	 that	 the	petitioner	must	establish,	despite	language	in	some	of	our opinions	 that	 is	 not	 fully	 consisten t	 with	 that	 federal	 authority.” Theriault , 2015	ME	137,	¶ 13	n.3,	125	A.3d	1163. [¶45] Thus,	 in Theriault ,	 we	 adopted	 the Strickland standard	 that	 to demonstrate	 ineffective	 assistance	 of	 counsel	 sufficient	 to	 overturn	 a judgment	 on	 post

- conviction	 revi ew	 “the	 petitioner	 must	 demonstrate	 two points:	first,	‘that	counsel’s	representation	fell	below	an	objective	standard	of reasonableness,’	and	second,	that	‘errors	of	counsel	.	.	.	actually	had	an	adverse effect	on	the	defense.’” Id .	¶	14	(quoting Strickl and ,	466	U.S.	at	688,	693). [¶46] Here,	 the	Court	accurately	points	out	 that	 the	parents	had	been convicted	 of	 crimes

— manslaughter	 for	 the	mother,	 felony	assault	 on	a	 child under	 six	 years	 of	 age	 for	 the	 father

— that	 resulted	 in	 the violent death	 of their first	 child,	 a	 child	 who m they	 had	 adopted.	 	 Despite	 those	 prior28 convictions,	counsel	for	the	parents	succeeded	in	convincing	the	trial	court	in the	 jeopardy	 proceeding	 to	 allow	 the	 parents	 to	 relitigate	 the	 cause	 of	 the death	 of	 their	 first	 child.	 	 In	 th e	jeopardy	 proceeding,	 the	 parents,	 testifying under	 oath,	 refused	 to	 accept	 any	 responsibility	 for	 the	 death	 of	 their	 first child,	focusing	instead	on	their	anger	toward	the	legal	system. [¶47] The	parents’	ineffective	assistance	claim	appears	to	place blame on	counsel	for	the	tactical	choice	in	the	jeopardy	proceeding	to	contest,	rather than	 concede,	 jeopardy	 when,	 with	 the	 concession,	 the	 parents	 could	 have received	parenting	assistance	 services	and	perhaps	 visitation	with	 the	 twins after	receiving	ser vices.		However,	from	the	available	record	it	is	evident	that it	was	 the	 parents,	 not	 counsel,	who	 refused	 to	accept	 their	already	 decided responsibility	for	the	death	of	their	first	child. See State	v.	Allen ,	2006	ME	21, 892	A.2d	456; State	v.	Allen ,	200 6 ME 20, 892	A.2d	447. [¶48] No ineffective	assistance	of	counsel	is	demonstrated	by	counsel’s tactical	choice,	evidently	based	on	their	clients’	wishes,	to	litigate	the	jeopardy issue.	 	 The	 record	 does	 reflect	 that	 the	 parents	 were	 advised	 of	 the	 State’s proposal	to	avoid	the	jeopardy proceeding	and	rejected	it,	choosing	to	litigate instead. Second

- gues sing	counsel’s	tactical	choices	after	an	unfavorable	result29 is	 a	 frequent but	 rarely	 successful	 ploy	 in	 post

- conviction	 proceedings. Recognizing	this,	the Strickland court	observed:
It is	 all	 too	 tem pting	 for	 a	 defendant	 to	 second guess	 counsel’s assistance	 after	 conviction	 or	 adverse	 sentence,	 and	 it	 is	 all	 too easy	 for	a	 court,	examining	 counsel’s	defense	after	it	 has	proved unsuccessful,	 to	 conclude	 that	 a	 particular	 act	 or	 omission	 o f counsel	was	unreasonable.
466	U.S.	at	689. [¶49] To	counter	this	tendency, Strickland holds: Because	 of	 the	 difficulties	 inherent	 in	 making	 the	 evaluation,	 a court	must	indulge	 a	 strong	 presumption	 that	 counsel’s	 conduct falls	within	the	wide	range of	reasonable	professional	assistance; that	is,	the	defendant	must	overcome	the	presumption	that,	under the	 circumstances,	 the	 challenged	 action	 “might	 be	 considered sound	trial	strategy.” Id. (quoting Michel	v.	Louisiana ,	350	U.S.	91,	101	(1955)). [¶50 ] Theriault ,	 reflecting Strickland ,	 holds	 that	 to	 overcome	 this presumption	 and	 succeed	 in	 vacating	 a	 judgment	 in	 a	 post

- judgment proceeding	asserting	in effective	assistance of	counsel,	a	challenger	must	meet the	 burden	 of	 demonstrating	 (1)	 that	 counsel’s representation	 fell	 below	 an objective	standard	o f reasonableness;	and	 (2)	 that	errors	of	counsel	actually had	an	adverse	effect	on	the	defense. 2015	ME	137, ¶ 14,	125	A.3d	1163. [¶51]		Here , no	ineffectiveness	of	counsel	is	demonstrated	in	the	tactical choices	 about	 which	 the	 parents	 complain,	 and	 even	 if	 ineffectiveness	 were30 demonstrated,	 the	 parents,	 causing	 the	 tra gic	 death	 of	 their	 first	 child	 and refusing	 to	 acknowledge	 any	 responsibilit y	 for	 their	 child’s	 death,	make	 the end	 result,	 termination	 of	 their	 parental	 rights,	 inevitable

— so	 any incompetence	of	counsel	could	not	have	any	adverse	effect	on	their	defense	in these	proceedings. [¶52]		The	parents	cannot	meet	their	burden	to	demonst rate	that	errors of	counsel,	if	any,	had	any	adverse	effect	on	 their	defense	of	 the	proceedings or	 could	 have	 affected	 the	 ultimate	 result.	 	 There	 are	 no	 facts	 left	 for	 the District	Court	to	adjudicate.		The	matter	should	be	remanded	only	to	reinstate the termination	 of	parental	 rights	judgment	and	let	 the	children	get	 on	with their	lives.

Janet	T.	Mills,	Attorney	General , and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of the	Attorney	General,	Augusta,	for	appellant Department	of	Health	and	Human Servi ces Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellee	father Heidi	M.	Pushard,	Esq.,	Law	Office	of	Heidi	M.	Pushard,	Lewiston,	for	appellee mother

Lewiston	District	Court	docket	number	PC

- 2013

- 73 F OR C LERK R EFERENCE O NLY